DeFilippo v. National Broadcasting Co., Inc., 80-318-A

• Citation: 446 A.2d 1036
• Decision Date: 15 June 1982
• Docket Number: No. 80-318-A,80-318-A
• Parties: 8 Media L. Rep. 1872 Shirley DeFILIPPO et al. v. NATIONAL BROADCASTING CO., INC. et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 1036

446 A.2d 1036

8 Media L. Rep. 1872

Shirley DeFILIPPO et al. v. NATIONAL BROADCASTING CO., INC. et al.

No. 80-318-Appeal.

Supreme Court of Rhode Island.

June 15, 1982.

Thomas W. Pearlman, Morton J. Marks, William A. Gosz, Providence, for plaintiffs.

Edwards & Angell, Knight Edwards, Providence, Coudert Brothers, Carleton G. Eldridge, Jr., June A. Eichbaum, New York City, for defendants.

OPINION

MURRAY, Justice.

This is an unusual and tragic case in which this court is being called upon to fashion a rule of great social import. The issue raised herein is one of first impression in this jurisdiction. The plaintiffs, Shirley and Nicholas DeFilippo, Sr., brought suit pursuant to G.L. 1956 (1969 Reenactment) §§ 10-7-1 through 10-7-13. (Wrongful Death Act) in their roles as co-administrators of the estate of Nicholas DeFilippo, Jr. (Nicky), their thirteen-year-old son, as individuals, and as Nicky's parents. The defendants are the National Broadcasting Co., Inc. (NBC); the Outlet Co., which is the owner-operator of WJAR-TV, the NBC affiliate in Providence; and ten "John Doe" defendants who were not served and have not appeared in this action. ¹

The plaintiffs' claims arise from a broadcast on defendants' television network of "The Tonight Show" on May 23, 1979. "The Tonight Show" is a popular comedy and talk show hosted by Johnny Carson. It is broadcast at 11:30 p. m. in the eastern time zone and is carried locally by WJAR-TV. On the broadcast of May 23, 1979, one of Johnny Carson's guests was Dar Robinson, a professional stuntman. While introducing him, Carson announced that Robinson would "hang" Carson as a stunt later in the broadcast.

Carson and Robinson conversed for a few moments, and photographs and a film clip were shown in which Robinson performed dangerous stunts. Carson then announced that when the program resumed after a commercial break, he would attempt a stunt that involved dropping through a trapdoor with a noose around his neck.

At this point, Robinson said "[b]elieve me, it's not something that you want to go and try. This is a stunt * * *." Thereupon, the audience began to laugh. The following colloquy then took place between Robinson and Carson "Robinson: I've got to laugh--you know, you're all laughing * * *.

"Carson: Explain that to me.

"Robinson: I've seen people try things like this. I really have. I happen to know somebody who did something similar to it, just fooling around, and almost broke his neck * * *."

The program then broke for a commercial.

When the show resumed, Carson was shown standing on a gallows with a noose hanging by his side while Robinson and a third man, "the hangman," stood by. A comic dialogue ensued between Carson and Robinson. A hood was then placed over Carson's head and the noose put on over the hood. The trapdoor was opened, and Carson fell through. To the delight of the audience, he survived the stunt without injury.

The plaintiffs claim that their son, Nicky, regularly watched "The Tonight Show," and they allege that he viewed this particular broadcast. Several hours after the broadcast, the DeFilippos found Nicky hanging from a noose in front of the television set, which was still on and tuned to WJAR-TV.

On October 22, 1979, plaintiffs filed a complaint in the Superior Court. They alleged that Nicky had watched the stunt and then tried to imitate it, thereby accidentally hanging himself. They proposed two theories of recovery. The first was that defendants were negligent in permitting the stunt to be broadcast and that they "negligently failed to adequately warn and inform infant plaintiff * * * of the dangers of this program." The second theory upon which plaintiffs sought to recover was that the broadcast had been intentionally shown with malicious and reckless disregard of plaintiffs' and Nicky's welfare and that defendants "placed their financial interests above those of the plaintiffs and the deceased minor."

Thereafter, on February 15, 1980, defendants filed a motion to dismiss or, in the alternative, for summary judgment. ² The motion was heard by a justice of the Superior Court on March 25, 1980. On April 10, 1980, plaintiffs filed an amended complaint in which they further clarified their original two theories of recovery by raising four causes of action: negligence; failure to warn; and two novel theories--products liability and intentional tort-trespass. They continued to demand damages in the amount of $10,000,000.

On June 4, 1980, the Superior Court rendered a written decision granting defendants' motion for summary judgment. The trial justice first rejected plaintiffs' product-liability claim, holding that defendants' broadcast was not a product. The trial justice then held as a matter of law that the First Amendment to the United States Constitution barred relief to the DeFilippos. He found that to permit recovery "would create a chilling effect on the first amendment rights of others * * *." On June 9, 1980, judgment was entered for defendants, from which order plaintiffs now appeal.

On appeal, plaintiffs have argued that the First Amendment does not bar recovery and that, therefore, triable issues of fact remain on their theories of negligence and products liability. The plaintiffs have also asked us to overturn the trial justice's finding that the broadcast was not a product. We hold that the First Amendment does indeed bar recovery in such actions; therefore, we do not reach plaintiffs' other contentions.

I

We begin our analysis by noting that it is well-settled law that the First Amendment applies to the states through the Fourteenth Amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 599 n.2, 100 S.Ct. 2814, 2840 n.2, 65 L.Ed.2d 973, 1004 n.2 (1980) (Stewart, J., concurring); Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 534, 100 S.Ct. 2326, 2331, 65 L.Ed.2d 319, 325-26 (1980); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500 n.8, 72 S.Ct. 777, 780 n.8, 96 L.Ed. 1098, 1105 n.8 (1952); Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138, 1145 (1925); id. at 672-73, 45 S.Ct. at 632, 69 L.Ed. at 1148 (Holmes, J., dissenting). ³ The First Amendment freedom of speech is not absolute, although it "forbid[s] the States to punish the use of words or language not within 'narrowly limited classes of speech.' " [Citation omitted.] Gooding v. Wilson, 405 U.S. 518, 521-22, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 414 (1972).

Those classes of speech which states may proscribe within First Amendment guidelines are obscenity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); defamatory invasions of privacy, Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, reh. denied, 343 U.S. 988, 72 S.Ct. 1070, 96 L.Ed. 1375 (1952); and words likely to produce imminent lawless action (incitement), Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). See Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (per curiam); Gooding v. Wilson, supra. ⁴

In cases like the one at bar, claims must be weighed against two distinct First Amendment rights that come into play. The more obvious of these is the First Amendment right of the broadcasters. See Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). This protection must afford defendants a strong presumption in their favor, a presumption that extends to both entertainment and news. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965, 978 (1977). The First Amendment, however, does not provide the broadcast media with unabridgable rights, as is evidenced by the limited governmental control over the broadcast media. See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, reh. denied, 439 U.S. 883, 99 S.Ct. 227, 58 L.Ed.2d 198 (1978); Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).

The other set of First Amendment rights belongs to the viewers and general public, whose rights are paramount and supersede those of the broadcasters. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. at 102, 93 S.Ct. at 2086, 36 L.Ed.2d at 783. The public has a right to suitable access to "social, esthetic, moral, and other ideas and experiences * * *." Id.; Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. at 390, 89 S.Ct. at 1807, 23 L.Ed.2d at 389. We must seek to balance these two distinct First Amendment protections with the arguments advanced by plaintiffs. Using this balancing test, we find that plaintiffs cannot overcome the right to freedom of expression guaranteed by the First Amendment.

II

The plaintiffs rely in large measure on Weirum v. RKO General, Inc., 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36 (1975), in arguing that the First Amendment does not bar recovery. In Weirum, the California Supreme Court held that a radio station could be liable for the deaths of two motorists who were killed in an automobile accident with two teenagers who were participating in the station's promotional contest. ⁵ The court held that there was no First Amendment bar to the radio station's liability "for the foreseeable results of a broadcast which created an undue risk of harm * * *. The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act." Id. at 48, 123 Cal.Rptr. at 472, 539 P.2d at 40. The plaintiffs maintain that the broadcast media should be liable for the foreseeable results of their actions and that under the doctrine...